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Taking the Offensive
by Ron Davis

Is the sale of sexually explicit videos and magazines by a shopping center tenant so offensive as to justify his eviction?

That is the question posed to the New Hampshire courts in a lease dispute between a Nashua-area shopping center and one of its tenants. And apparently the courts are having a tough time resolving the matter.

The dispute began shortly after the two parties agreed on the terms of a lease and the tenant began operations of his "Video Express" store. Other tenants soon began complaining of the sale by Video Express of "pornography" and "sexual devices."

In the negotiations leading up to the lease agreement, the tenant did not explain that he intended to offer sexually explicit merchandise exclusively. And the shopping center owners did not expressly restrict the type of videos that the tenant could sell.

But the lease did provide that the tenant could not conduct a business that would be, among other things, "offensive." On grounds that the business of the tenant was indeed offensive, the shopping center owner began eviction proceedings.

The tenant resisted eviction, however, arguing that the term "offensive" is ambiguous and subject to different interpretations. But a local court decided in favor of the shopping center owners.

On appeal by the tenant, the New Hampshire Supreme Court sent the case back to the local court to determine what the two parties, "as reasonable people," mutually understood the ambiguous term "offensive" to mean.

Instructed the justices, "We cannot determine what the landlord in this case should have reasonably expected and what the tenant should have reasonably understood the term ‘offensive’ to mean in this lease.... The court should consider the parties’ intent by examining the [lease] contract as a whole, the circumstances surrounding execution, and the object intended by the agreement." (N.A.P.P. Realty Trust v. CC Enterprises, 784 A.2d 1166] [N.H. 2001])

Decision: November 2001
Published: January 2002



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